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CHAPTER 4. LIABILITY, CIVIL AND CRIMINAL
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CHAPTER 4 LIABILITY, CIVIL AND CRIMINAL SUMMARY Liability in Anglo-Saxon Law Trespass in the carry Plea Rolls Liability ill Tmpass Negligen .e and Trespau Negligence and Case Vicarious Liability Respondeat Superior Growth ofthe Modern Rule ofEmployer's Liability The Bailee's Liability Common Callings PAGE 464 465 465 467 468 472 475 475 476 480 For reasons we have already mentioned, it is impracticable to speak of our early law in terms of a distinction between crime and tort. This observation becomes necessary once more in tracing the history of liability, for such few principles as there were had been derived from experience drawn indifferently from all parts of the law of wrongs. Nevertheless, some interplay between notions drawn from dearly criminal cases and those drawn from obviously civil ones may be expected, and in fact actually took place. LIABILITY IN ANGLO-SAXON LAW English writing on the subject generally goes back to a series of striking articles by Dean Wigmore which appeared in the Harvard Law Review in 1894. The author there set forth his theory that in early law (including Anglo-Saxon law) liability was absolute:1 " The doer of a deed was responsible whether he acted innocently or inadvertently , because he was the doer; the owner of an instrument which caused harm was responsible, because he was the owner, though the instrument had been wielded by a thief; the owner of an animal, the master of a slave, was responsible because he was associated with it as owner, as master.•••" and a great many similar propositions are advanced which do not all concern English law. In short, " a man acts at his peril". This theory, even then, did not represent the unanimous opinion of common lawyers, for Mr Justice Holmes had already criticised it in 1881, doubting whether the common law had ever held such a rule in its best days.2 Professor 1 The articles were reprinted and revised for the Select E"says in AlIglo-American Legal Hi"tory, where this passage occurs at iii. 480. I Holmes, Common Law, 89. 463 464 CRIME AND 'fOR'f Winfield has more recently and more thoroughly examined the question, with the result that he declares it to be merely a myth.l There was indeed a maxim qui inscienter peccat, scimter emendet, but there is no need to assume that maxims represented the state of the law with much more accuracy in 1100 than they do now. We may surmise, however, that there was a fatalistic attitude to life in earlier times which made men accept misfortune (in the shape of heavy liability for harm they did not mean to do) with more resignation than now.2 We have also to bear in mind that " law in books" was itself a rarity in the four centuries preceding Glanvill, and so was much less in contact with" law in action" than it is to-day. The question of liability is frequently discussed by the author of the Leges Henrici Primi, but as Professor Winfield shows, he expressly warns us that his crude maxim is not the whole law, and frequently mentions the reduction of the compensation or penalty according to circumstances. Even the Anglo-Saxon laws themselves plainly discriminate between care and carelessness, and recommend clemency. A passage appended to one of the laws of Aethelred (c. 1000) seems to represent the thought of his age in the determination of liability, and suggests that the Anglo-Saxon system of preordained payments was more flexible than would appear on the surface. It reads thus: " And always the greater a man's position in this present life or the higher the privileges of his rank, the more fully shall he make amends for his sins, and the more dearly shall he pay for all misdeeds; for the strong and the weak are not alike nor can they bear a like burden, any more than the sick can be treated like the sound. And therefore, in forming a judgement, careful discrimination must be made between age and youth, wealth and poverty, health and sickness, and the various ranks of life, both in the amends imposed by ecclesiastical authority, and in the penalties inflicted by the secular law. " And if it happens that a man commits a misdeed involuntarily or unintentionally , the case is different from that of one who offends of his own free will voluntarily and intentionally; and likewise he who is an involuntary agent in his misdeeds should...